Lou Lan Ting and Minister for Immigration and Citizenship (Migration)
[2025] ARTA 1998
•7 July 2025
Lou Lan Ting and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1998 (7 July 2025)
Applicant:August Enoka LOU LAN TING
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2025/3211
Tribunal: General Member T Eteuati
Place:Brisbane
Date of Decision: 7 July 2025
Date of Reasons: 3 October 2025
Decision:The reviewable decision is affirmed.
Statement made on 03 October 2025 at 3:57pm
Catchwords
MIGRATION – non-revocation of mandatory cancellation of a visa – failure to pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 110 - Tribunal finding there is not another reason to revoke the mandatory cancellation decision - Reviewable decision affirmed
Legislation
Administrative Review Tribunal 2024 (Cth)
Migration Act 1958 (Cth)Migration Regulations 1994 (Cth)
Cases
Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 295 FCR 315
DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 301 FCR 344
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
Marzano v Minister for Immigration & Border Protection (2017) 250 FCR 548
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 97 ALJR 1005Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417
Secondary Materials
Ministerial Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (21 June 2024)
Statement of Reasons
This is an application by August Enoka Lou Lan Ting (“the Applicant”) for review of a decision made by a delegate of the Minister for Immigration and Citizenship (“the Minister” or “the Respondent’) on 14 April 2025 to refuse to revoke, under section 501CA(4) of the Migration Act 1958(Cth) (“the Act”), the cancellation of the Applicant’s Class TY Subclass 444 Special Category visa.
The Applicant, a New Zealand citizen, began residing in Australia as a 21year-old in 2001. He last arrived in Australia on 11 August 2011 after a 2-year absence from Australia when he was a Mormon missionary in the Philippines. On arrival he was granted a Class TY Subclass 444. That is the visa that was mandatorily cancelled on 20 December 2023.
The Applicant’s was first found guilty of an offence in 2007. He was then convicted or found guilty of offences in 2008, 2012, 2018, 2019, 2021 and 2023.
On 20 December 2023, while the Applicant was in prison, a delegate of the Minister cancelled the Applicant’s visa pursuant to section 501(3A) of the Act.
The Applicant’s visa was cancelled by the Minister on the basis that the Applicant did not pass the character test as set out in section 501(6)(a) of the Act (when read with section 501(7)(c)), as he had been sentenced to a term of imprisonment of over 12 months and was serving a full-time term of imprisonment.
On 12 January 2024, the Applicant sought that the cancellation decision be revoked.
On 14 April 2025, a delegate of the Minister refused to revoke the cancellation of the Applicant’s visa and the Applicant was notified of that decision on 6 May 2025.
On 21 April 2025, the Applicant applied to the Administrative Review Tribunal (“the Tribunal”) for review of that decision.
The matter was heard on the 26 and 27 June 2025. On 7 July 2025 , the Tribunal handed down its decision affirming the reviewable decision. Following are the reasons for that decision.
ISSUES
Pursuant to section 501CA(4) of the Act, the Minister may revoke the decision made under section 501(3A) of the Act to cancel the Applicant’s visa. Subsection 501CA(4) provides:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
The Applicant was invited to make representations to the Minister about revocation of the cancellation of his visa and he made representations in accordance with the invitation. Thus, section 501CA(4)(a) of the Act is satisfied in this case.
The two remaining issues are:
(a) Whether the Applicant passes the character test as defined in section 501 of the Act; and
(b) Whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Tribunal finds that the Applicant passes the character test or that there is another reason why the decision to cancel the Applicant’s visa should be revoked, the cancellation decision must be revoked.
The Tribunal considers that the meaning of “another reason” in subparagraph 501CA(4)(b)(ii) of the Act is a reason other than that the Applicant passes the character test.
The weight of authority is that there is no discretion, in the strict sense, residual or otherwise, to be exercised in determining whether to revoke the cancellation of a visa under section 501CA: see discussion of the relevant authorities including Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417 by O’Sullivan J in Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 295 FCR 315.[1] Rather, as North ACJ stated in Gaspar v Minister for Immigration and Border Protection(2016) 153 ALD 337 at [38]:
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked. In this instance the Minister acted in accordance with that construction of the section. He did not apply the wrong test.
[1] Cf comments of Derrington J in Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 295 FCR 315 at [55] to [61].
In Marzano v Minister for Immigration & Border Protection (2017) 250 FCR 548, Collier J (with whom Logan and Murphy JJ agreed) agreed with this interpretation of section 501CA(4) adding at [32]:
I note that the section does not, for example, require the Minister to revoke a cancellation decision if the Minister finds ‘any’ reason why the cancellation decision ‘could’ be revoked’. The requirement that the Minister revoke a cancellation decision if he or she determines that there is another reason why the cancellation decision should be revoked, imports an assessment by the Minister of the propriety of a revocation decision, balancing factors both in favour and against revocation.
If the Tribunal is satisfied that the Applicant passes the character test or that there is another reason why the cancellation decision should be revoked, the Tribunal must find in the Applicant’s favour. The appropriate decision in those circumstances would be for the decision refusing to revoke cancellation to be set aside and for a decision in substitution to be made revoking the cancellation decision.
EVIDENCE
The Tribunal has considered all of the evidence permissibly before it including the documents described in section 501G of the Act (“G Documents” or “G1”), the documents tendered into evidence by the Applicant and the documents tendered into evidence by the Respondent. The evidence contained in these documents is discussed throughout this decision. The Tribunal has also carefully considered all of the evidence given at the hearing of the matter on 26 and 27 June 2025. The Tribunal has also reviewed the audio recording of the hearing.
DOES THE APPLICANT PASS THE CHARACTER TEST
Section 501(6) relevantly provides:
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); or
...
Section 501(7) relevantly provides:
(7) For the purposes of the character test, a person has a substantial criminal record if:
...
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
...
The Applicant will be taken to have a substantial criminal record, and thus not pass the character test, if he has been sentenced to a term of imprisonment of 12 months or more.
Section 501(12) of the Act provides that “imprisonment” includes any form of punitive detention in a facility or institution.
Offending history
An Australian Criminal Intelligence Commission criminal history report for the Applicant dated 18 June 2024 shows the following convictions for the Applicant:
Date
Court
Offence
Sentence
3 May 2024
Beenleigh Magistrates Court
Possessing relevant substances or things
Conviction recorded
19 July 2023
Beenleigh Magistrates Court
Breach of suspended sentence imposed on 23/11/2021 (re: assaults occasioning bodily harm-domestic violence offence)
Bridges proven balance of suspended sentence invoked
conviction recorded 370 days imprisonment
Breach of suspended sentence imposed on 23/11/2021 (re: assaults occasioning bodily harm-domestic violence offence)
Bridges proven balance of suspended sentence invoked
conviction recorded 188 days imprisonment t
11 May 2023
Brisbane Magistrates Court
Wilful damage on 6/09/2022
Conviction recorded
1 month imprisonment
Contravention of domestic violence order (between 11/09/2022 and 30/09/2022)
Conviction recorded
15 months imprisonment
23 November 2021
Brisbane District Court
Assaults occasioning bodily harm-domestic violence offence (on 07/08/2019)
Conviction recorded
3 years six months imprisonment
Assaults occasioning bodily harm-domestic violence offence (on 07/08/2019)
Conviction recorded
3 years imprisonment
Four counts of common assault-domestic violence offence
Conviction recorded
9 months imprisonment
Assaults occasioning bodily harm-mystic violence offence (on 27/06/2019)
Conviction recorded
12 months imprisonment
Possess tainted property
possess utensils or pipes et cetera that had been used
possess dangerous drugs
possess utensils or pipes et cetera for use
conviction recorded protection order issued
1 July 2019
Beenleigh Magistrates Court
Two counts of Failure to appear in accordance with undertaking
no conviction recorded not further punished
22 June 2018
Ipswich Magistrates Court
possess dangerous drugs
No conviction recorded
three month good behaviour bond
30 July 2012
Three counts of contravening family violence final intervention order
Conviction recorded
6 months imprisonment
Criminal damage (intent damage/destroy)
Conviction recorded
12 month community correction order
30 October 2008
Three counts of unlawful assault
p
Conviction recorded
3 months imprisonment
4 October 2007
Appeal re: 06/08/2007 breach intervention order
intentionally damage property
Appeal allowed convicted and fined $750
As the Applicant has been sentenced to a term of imprisonment of at least 12 months, the Applicant does not pass the character test.
Is there another reason to revoke the mandatory cancellation of the Applicant’s visa?
In considering whether there is another reason to revoke the mandatory cancellation of the Applicant’s visa pursuant to section 501CA(4) of the Act, the Tribunal must comply with a direction made under section 499(1) of the Act: section 499(2A) of the Act. The relevant direction is Direction 110: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 110 or the Direction).
The Direction contains 8 principles that inform a decision maker in taking into account the considerations in paragraphs 8 and 9 of the Direction. The principles that are found in paragraph 5.2 of the Direction are as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The safety of the Australian Community is the highest priority of the Australian Government.
(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the noncitizen poses a measurable risk of causing physical harm to the Australian community.
(5) Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the noncitizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 8 of the Direction sets out five primary considerations:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
Paragraph 9 of the Direction provides for other considerations and sets out the following non exhaustive list of other considerations:
(a)legal consequences of the decision;
(b)extent of impediments if removed; and
(c)impact on Australian business interests.
Paragraph 7 of the Direction provides:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
Paragraph 8.1(1) of the direction provides:
When considering the protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of the Direction provides:
Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen's conduct to date; and
b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct
The nature and seriousness of the Applicant’s conduct to date
When considering the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction provides that decision-makers must have regard to the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;
(e)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(f)the cumulative effect of repeated offending;
(g)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(h)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
(i)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The nature and seriousness of the Applicant’s conduct
The Applicants offending from 2007 to 2021 was summarised by the prosecutor during sentencing proceedings on 23 November 2021, as follows:
Mr Lou Lang Ting’s criminal history dates back to 2007 when he was living in Victoria. He was 28 years old when he was sentenced for offences of intentionally damaging property and breaching an intervention order. That’s the entry that appears at the bottom of page 2 and the beginning of page 3 of his criminal history. Ultimately, after an appeal to the County Court, the order that stood was an order for 24 months of a community-based order.
Now, that required him to receive psychological and drug and alcohol interventions. And within one year he again breached an intervention order and was fined. In October of 2008, he was sentenced for an unlawful assault to which he was sentenced for three months imprisonment. That was wholly suspended. But the most significant entry is the one that commences on page 1 of the Victorian history. On the 30th of July of 2012 when Mr Lou Lang Ting was 33 years old, he was sentenced to six months imprisonment. Again, that was wholly suspended for an operational period of 12 months for an offence of contravening a family violence intervention order.
And that order was combined with a 12-month community correction order for an offence of criminal damage. Again, he was ordered to participate in programs that were designed to address drug and alcohol abuse as well as his general behaviour. Now, based on the traffic history, five years on from that sentence in the last sentence in Victoria, Mr Lou Lang Ting had then moved to Queensland. And clearly he was still abusing drugs as he was convicted of driving with a relevant drug present in his system on the 20th of September 2017. That is the last entry on his traffic history.
The remaining traffic offences are for low range speeding and one occasion of driving a defective vehicle. Finally, in relation to the 5 Queensland history, there are two failures. That is limited to two failures to appear. They relate to the first summary offence that is before the court this morning, that is the possess tainted property charge on the 28th of July of 2017. Mr Lou Lang Ting’s criminal history indicates some predisposition towards violence through his convictions for assault and intentional property damage. Considering the offences before the court this morning, the drug and behaviour interventions that were ordered by the Victorian courts on two occasions have not deterred Mr Lou Lang Ting from these aspects of his life.
The present offending, however, really represents a sharp escalation in the level of violence that he has been willing to engage in. What I now intend to do was to briefly summarise the facts of each of the offences in the order in which they occurred.
…
the first offence in time is the offence of possessing tainted property on the 28th of July. Mr Lou Lang Ting was found in possession of a phone. He could not give a proper explanation as to why he had that phone. He was issued a notice to appear for that offence and he was later placed on bail and again, as I have mentioned, the two failures to appear that offences of failing to appear that appear on the Queensland history relate to that charge. The significance of this though is that the remaining offences before the court were committed whilst he was on bail for that charge or, indeed, subsequent orders of bail.
On the 19th of April of 2019, Mr Lou Lan Ting tested positive for methylamphetamine usage while driving.
…
So there’s mandatory disqualification of at least six months but no more than 18. The next offending in time is the offending that appears that to which the ex officio indictment relates. That offending relates to a woman named [Victim 1]. She was 31 years old at the time. She had been in a relationship with Mr Lou Lan Ting for about six months at the time of the offending. On the 27th of June of 2019, she was slapped in the face by Mr Lou Lan Ting without warning. He then pulled her into her room and punched her to the head and body with his fists.
These punches continued despite the fact that [Victim 1] fell to the floor, 25 screamed, and covered herself from the blows. The punches continued to the point that Mr Lou Lan Ting’s uncle had to pull him away from [Victim 1]. But even then, Mr Lou Lan Ting again lunged at [Victim 1] and punched her in the head further with him again needing to be pulled away a second time. [Victim 1] suffered bruises and a laceration to her forehead from the assault and that laceration required stitches. And despite Mr Lou Lan Ting identifying to [Victim 1] that it was not safe for her to stay with him, he later refused to relinquish her car keys to her which prevented her from leaving him and going home.
The following morning, Mr Lou Lan Ting continued refuse to give [Victim 1] her car keys. At about 11 am he became angry with her, speaking to his uncle, and told her to, “Get into the car,” which she did. While she was driving, Mr Lou Lan Ting punched her to the left-hand side of her face with enough force to break her earring. And that’s the subject of count 2, the common assault charge. Once at an address in Logan, [Victim 1] contacted her sister and told her where she was. Police arrived shortly after. Mr Lou Lan Ting was charged in relation to possession of a smoking pipe and a small amount of methylamphetamine.
He was not, at that stage, charged in relation to the offending against [Victim 1]. She went to hospital and provided her statement at a later time. But he did lie to police about how she had suffered her injuries. The following month on the 19th of July, again, returning to the summary schedule of facts, Mr Lou Lan Ting was again charged for a possession of a glass smoking pipe and two days after being charged for that offence from the 21st of July he was again found driving with methylamphetamine in his system. That then brings me to the offending on the eight count indictment. That offending relates to a woman named [Victim 2].
…
She had been in a romantic relationship with Mr Lou Lan Ting for a period of only two weeks although they had 10 known each other for a much longer time than that. Over the course of the day on the 7th of August 2019, Mr Lou Lan Ting assaulted [Victim 2] multiple times. Similarly to the offending against [Victim 1], Mr Lou Lan Ting displayed paranoid behaviour and [Victim 2] was assaulted without provocation or reason. The context that [Victim 2], in the context of [Victim 2] hiding from Mr Lou Lan Ting because of his earlier behaviour, he entered her home and found her.
The offending, which is the subject of count 3, involved her – him hitting her to the back of his head. He then picked up a side table and struck her multiple times to the back near to the shoulder blades. At that point, he was in possession of a flick knife but he did not use it at that time. Following that assault, Mr Lou Lan Ting walked [Victim 2] outside to her car and while he was driving he slapped her in the face and struck her six to eight times to the back of her head with increasing levels of force. [Victim 2] again saw the knife on his lap and he told her at that stage that he would cut her fingers off if she kept lying. That is the subject of count 5.
After the two had arrived at an associate’s house in Marsden, a further assault occurred which involved a strike to the back, to the face with the back of Mr Lou Lan Ting’s hand. That knocked [Victim 2] off balance. He then told her to put her hands on the coffee table and he again threatened to cut off her fingers. He then struck her with the folded up knife. This caused her hand to immediately swell up. He then punched her multiple times to the head, back, and shoulders. He struck her two to three times in the neck with a metal stand and [Victim 2] curled up in a ball to protect her head and the assault with that metal stand continued as Mr Lou Lan Ting struck her hands as she protected herself.
That is the subject of the assault occasioning bodily harm while armed charge. That’s count 6. Mr Lou Lan Ting continued to yell abuse at [Victim 2] and accused her of being a liar. The occupant of that house told them to leave and Mr Lou Lan Ting and [Victim 2] then drove to Mr Lou Lan Ting’s house, also in Marsden. During the device he continued to abuse [Victim 2] and struck her three to four times in the mouth which caused her to bleed and that’s the subject of count 7.
And once at the house, Mr Lou Lan Ting again abused [Victim 2]. He had hit her head and swung a computer monitor down at her head as if to strike her. And that is the subject of count 8. He then left her in the room while he left the house and she was trapped inside and used a screwdriver to exit the room. And she got assistance from one of Mr Lou Lan Ting’s housemates. That evening when the pain of the injuries became too much she went to the hospital. She presented with multiple bruising, multiple bruises, abrasions, and abrasions to her face and body. She had swelling to her face and her fingers had swollen so much that she could not remove the rings that she had on her fingers.
The following morning, she was released from hospital and she attended a police station and provided a formal statement. Mr Lou Lan Ting was arrested later that morning and he agreed to be interviewed and he lied to police, claiming that he had not assaulted [Victim 2].
33. The Applicants serious offending post 2021 was summarised by the prosecutor during sentencing proceedings on 11 May 2023, as follows:
The facts in relation to charge 1 of two that’s the contravention of the domestic violence order. The aggrieved in that matter is a [Victim 2]. The defendant and the aggrieved are the subject of a current domestic violence protection order, which I have provided your Honour.
…
Your Honour, the facts are that at around 12 am - that’s midnight - on the 11th day of September 2022, the defendant arrived at an address in Monash Road in Loganlea where the aggrieved was visiting. The defendant and the aggrieved have had a conversation in relation to their previous history. During this conversation, the defendant and the aggrieved have swapped mobile telephone numbers.
Your Honour, then between the 11th of September 2022 and the 30th day of September 2022, a period of roughly three weeks, the defendant has sent multiple text messages to the aggrieved. The contents of these text messages are as follows. And this is an excerpt:
If you don’t want me to use your car, just be fucking straight up.
I’m not stupid, fuckhead.
As well as an instance where he said:
Fuck you, fucking dog. You shouldn’t be walking this earth. You
fucking wait, dog. Open the fucking door or I’m kicking it down.
Your Honour, also between the 11th of September 2022 and the 30th day of September 2022, the defendant has made around 200 phone calls to the aggrieved. The aggrieved has provided police with the call log on her mobile phone of the calls from the defendant’s mobile phone number.
Then at around 9.30 pm on the 29th of September 2022, during a phone call between the defendant and the aggrieved, the defendant has stated to the aggrieved:
I’ll cut your fucking throat.
Then at around 10.30 on the following day - sorry, 10.30 am on the following day, the 30th. So it’s the next morning. The aggrieved is woken up in her house and located the defendant sleeping on the sofa. The aggrieved locked the house up the previous night, as she did not want the defendant staying in her house. The aggrieved went into another bedroom and has fallen back asleep.
The defendant has then walked into the bedroom and whacked the aggrieved on the arse, and asked her for her car keys. The aggrieved didn’t say no. However, she felt like she didn’t have any option, so she handed the defendant her car keys. The defendant then left the address.
Your Honour, a short time later, the defendant returned to the aggrieved’s address, and had another conversation with the aggrieved. The defendant stated, “You were being a smart-arse. I should punch your teeth out.” The defendant then had a knife which was described as being around 30 centimetres long. The defendant stated, “If you don’t answer your phone, I’ll smash it.” The defendant put the phone on the table and held the knife to the aggrieved’s left cheek and stated, “I’ll cut your fucking throat.” The defendant then put the knife down and slapped the defendant on the left cheek.
The defendant, of course, your Honour - and I do recognise that this a contravention on - multiple contraventions on diverse dates between - during that three-week period. The prosecution allege that he’s breached condition 1, to be of good behaviour, as well as conditions 2, 3, 4 - in fact, sorry, all of the conditions, I should indicate, at various points for different reasons.
HIS HONOUR: So it’s a course of conduct by him.
MR SCOTT: It’s an entire course of conduct that culminates and escalates to, effectively, threats of violence, and actual violence.
HIS HONOUR: All right.
Your Honour, at around 4.45 pm on the 11th day of October 2022, 25 police intercepted a certain vehicle bearing registration for a licence check. Police checks identified the driver was the defendant. Further police checks completed on the defendant, and at 4.50 pm he was arrested for this charge, transported to Logan Central Station, given the opportunity to participate in an interview in relation to this matter, but the defendant declined. He was arrested. Your Honour, in relation to 30 charge 2 of 2, it involves a different complainant. That is - the victim in that matter is a [Victim 3]. The facts in relation to that charge are that on the 6th of September 2022 - excuse me - the defendant has attended an address, 7 Trulson Drive at Crestmead. After the defendant left the address, the victim advised the defendant that he has left property at her house. The defendant has then contacted the victim in relation to collecting the property, to which the victim stated she had given it away.
The defendant has then reattended the address at 1.50 am on the 6th day of September, and an argument between the victim and the defendant has occurred. The victim then closed the front door on the defendant, as she did not want him entering her house. The defendant has then obtained a white metal shovel that was leaning on the victim’s house and swung it like a bat into a window adjacent to the front door, smashing the window and tearing the flyscreen. The defendant has then left the address. At approximately 2.30 am that same morning, he has attended the victim’s address in relation - sorry, police I should indicate have attended the victim’s address in relation to a disturbance. They located and spoke to the victim, obtained a version, conducted a search of - in the immediate area. Police obtained a signed notebook statement from the victim, and then it wasn’t until that date I referred to previously - the 11th of October - that he was randomly intercepted y police and arrested. He was given an opportunity to be interviewed in relation to this matter as well, however he declined. Those are the facts in relation to that.
The Applicant has a history of serious violent offending including family violence against a number of different women. The Applicant has been sentenced to a period of imprisonment on 4 occasions. Such offences are viewed very seriously by the Australian Government and I consider that this offending is very serious.
There has been a concerning increase in the seriousness of the offending by the Applicant. His first offence resulted in a fine and his most serious offending, of serious family violence occurring in 2019. Even after that offending for which he was dealt with by the Court in 2021, the Applicant committed further family violence offences.
The Applicant has had difficulty in complying with directions, orders and sentences and court ordered rehabilitation has also been unsuccessful in preventing repeated violent acts.
There is no doubt that the Applicant’s violent offending, including family violence offences, is considered very serious by the Australian Government and the Australian community under the Direction and I have found that the violent conduct of the Applicant was very serious.
The Applicant’s other offending, primarily drug related offending, is less serious.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 8.1.2(2) of Direction 110 provides:
In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the non-citizen re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
c) where consideration is being given to whether to refuse to grant a visa to the non-citizen — whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The Tribunal finds that, if the Applicant were to re-engage in criminal conduct similar to his violent conduct, that is, if he were to attack members of the Australian community including female partners, it is likely that the nature of the harm to victims would be that they would suffer from violent crime including potentially actual or grievous bodily harm with potential lifelong physical and mental consequences.
As to the risk of reoffending, there is no expert evidence before the Tribunal.
The Applicant indicated that he has undertaken courses including rehabilitative courses while in detention. That claim is supported by records before the Tribunal. The Applicant has also gone through significant rehabilitative courses in the past and yet continued to reoffend. The Applicant indicated that this time was different as this time the Applicant had developed empathy for his victims and had reached out and apologised.
The Tribunal notes however, that despite the Applicant pleading guilty to serious violent offences in 2021 and 2023, the Applicant claimed in the documentation and also at the hearing that he had not, in fact, physically harmed any of his victims.
The Tribunal has taken into account all of the letters of support from the Applicant’s family and friends. Many of those letters state the belief that the Applicant is unlikely to reoffend if the Applicant returns to Victoria and is around his large extended family there.
The Applicant indicated that a strong motivating factor for him was that he has strong relationships with his family in Australia, most of whom reside in Victoria.
The Applicant began offending in 2007 and has since been dealt with the courts in 2008, 2012, 2018, 2019, 2021, 2023 and 2024. He has continued to offend despite repeated rehabilitative courses. He has offended despite having had family support and having been repeatedly punished by the courts. In those circumstances, it is very difficult for the Tribunal to accept that the Applicant is unlikely to reoffend. Four family members who gave evidence before the Tribunal had no specific knowledge of the Applicant’s past offending and had not been able to provide the Applicant with support in the past such as to prevent him offending. As one sister said, the family can not assist him if he does not communicate clearly with them regarding his needs for assistance.
It appears to the Tribunal the Applicant has had a serious illicit drug addiction for much of his adult life and has been unable to permanently quit his addiction.
The Tribunal finds that there remains a real risk that the applicant will re-offend in Australia.
I find that this primary consideration weighs very heavily against revocation of the visa cancellation decision.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN
The Applicant has committed very serious acts of family violence as described above.
This primary consideration weighs very heavily against revocation of the visa cancellation decision.
PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
Paragraph 8.3(1) of the Direction provides:
(1) Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
Paragraph 8.3(2) provides that in considering the strength, nature and duration of any other ties a non-citizen has to the Australian community having regard to:
(a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child , noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community during that time.
(b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant began residing in Australia as a 21-year-old in 2001. He has resided in Australia for about 25 years since.
The Applicant’s parents, grandmother, 3 sisters and brother live in Australia. The Applicant also has a large number of extended family members living in Australia, most in Victoria, many of whom have put on statements in support of the Applicant. Two of the Applicant’s sisters, a niece and nephew gave evidence at the hearing in support of the Applicant.
The Applicant also has 3 biological children in Australia. The youngest will turn 18 in 2025. The Applicant has not had contact with his younger two children for a number of years.
The Applicant has indicated that he has been employed during some of his time in Australia.
The Applicant has undertaken a 2 year mission to assist those in needs in the Philippines prior to arriving in Australia last in 2011.
The Tribunal is willing to find the Applicant has strong ties to Australia, having lived here for so long and with extensive family ties to Australia. The Tribunal accepts that the Applicant’s grandmother and parents are elderly and ill and would benefit from the Applicant’s assistance if you are allowed to remain in Australia. The Tribunal accepts that the applicant would not be able to care for his parents or grandmother in person if he were removed to New Zealand, nor would he be able to return to Australia for their funerals.
The Tribunal is willing to accept that members of the Applicant’s family, his friends and his acquaintances may be upset by the Applicant’s permanent absence from Australia. For many of them, it will mean the end of any in-person contact with the Applicant. The Tribunal accepts that while the Applicant could continue to have meaningful contact with his family in Australia by electronic means, it accepts that this is a poor substitute for in-person contact. The Tribunal notes that most of the Applicant’s friends and family reside in Victoria whereas the Applicant has been in Queensland since 2018 and thus has had very little in-person contact with his family, only visiting his family in 2022 after his younger brother passed away.
The Tribunal has also considered the hardship to the Applicant of a non-revocation decision, including his permanent separation from Australia and his family and friends here.
The Tribunal accepts that the Applicant has spent time contributing positively to Australia through his work and community involvement and has ties to Australia.
The Tribunal considers that this primary consideration weighs heavily in favour of revocation of the visa cancellation decision.
PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
This primary consideration necessitates a determination to be made about whether non-revocation under section 501CA is, or is not, in the best interests of each child under the age of 18 in Australia affected by the decision.
In considering the best interests of a child, the following factors must be considered where relevant:
(a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant has three sons in Australia. Only his youngest son is under 18 and he will be turning 18 this year. The Applicant has not communicated with his youngest son in years and there is no indication that this will occur before the younger son turns 18.
The Applicant also has 16 nieces and nephews who are under the age of 18 ranging in age from 4 to 17 years of age. The Applicant provided a list of all of these nieces and nephews to the Tribunal along with dates of birth and provided information about their parents during the hearing. All of the Applicant’s nieces and nephews live in Victoria.
The Applicant had a younger brother who passed away in 2022 (Brother A). The Applicant gave evidence that Brother A was murdered in front of his elder children. The Applicant indicated that he had been quite close with Brother A’s elder children especially the eldest two children who are 17 and 16 years old. The Applicant indicated that he had lived with these children for some time prior to moving to Queensland. The older boy gave evidence in support of his uncle at the hearing indicating that he wished for his uncle to remain in Australia. Brother A had 11 children under 18.
The relationship of each of these children to the Applicant appears to be that of a normal uncle-niece/nephew relationship. The Applicant does not play a parental role in relation to any of the children under 18 including to his own son is under 18.
Parental responsibilities for Brother A’s children is shared between the children’s mother and the Applicant’s four other siblings.
The Applicant has had very little in-person contact with any of the children as he has been residing in Queensland since 2018.
It does not appear that the Applicant’s family members have been told of the nature of the Applicant’s more serious offending or have knowledge of it in any detail. It is not apparent that any of the children have been particularly affected by the Applicant’s offending.
If the Applicant returned to New Zealand all the relevant children could either continue, commence or recommence communications with the Applicant via electronic means.
The Tribunal acknowledges that there would be no in-person relationship between the Applicant and any of the children unless they were to visit him in New Zealand.
Many of the elder children have provided the Tribunal statements indicating that they wish for the Applicant to be allowed to remain in Australia and re-establish in-person relationship with them in Victoria.
The Tribunal finds that non-evocation under section 501CA is not, in the best interests of each child under the age of 18 in Australia affected by the decision.
The Tribunal places moderate weight on this primary consideration in the Applicant’s favour.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 8.5 of the Direction provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
a) acts of family violence; or
b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
f) worker exploitation.
(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community
(4) This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
Most relevantly in the current case, the Applicant breached the statement of Australian community expectations set out in 8.5(1) of the Direction when he failed to obey Australian laws. By engaging in very serious crimes in breach of this expectation, paragraph 8.5(1) expresses the Australian community expectation, as a norm, that Government not allow the Applicant to remain in Australia.
The Tribunal notes that the wording of the Direction does not appear to allow for any subjective evaluation by the Tribunal of what the expectations of the Australian community are. Rather, the Government has provided a statement of policy in relation to community expectations which decision-makers must comply with and consider as a primary consideration.
The weight to be given to this primary consideration is of course a matter for the Tribunal, and I place weight on this consideration primarily by considering the nature and seriousness of the Applicant’s offending which informs severity of the breach of the community expectation to obey the law: see DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 301 FCR 344 per curium at [53] to [64]. I will of course consider the relative weight of all considerations at the conclusion of my decision-making process.
The Tribunal places heavy weight on this primary consideration in favour of non-revocation.
OTHER CONSIDERATIONS
Other Consideration (a): Legal consequences of the decision
It may well be, that this other consideration is only strictly relevant where there is a protection finding in an Applicant’s favour or when there is an issue as to whether international non-refoulement obligations are owed in respect of an Applicant. No such issues arise in this case and in that sense, it is not relevant.
However, I have also considered the legal consequences of affirming the non-revocation decision on the Applicant and his family. If the decision is affirmed, it will result in the Applicant remaining an unlawful non-citizen and remaining in immigration detention until he is removed from Australia or regains his visa or in the very unlikely circumstance that he is granted a visa or if circumstances become such that there is no real prospect of removal of the Applicant from Australia becoming practicable in the reasonably foreseeable future (see NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 97 ALJR 1005).
The Applicant’s removal from Australia having had his visa cancelled under section 501, will almost inevitably mean that he will never be able to return to Australia (because of the operation of special return criterion 5001 in Schedule 5 to the Migration Regulations 1994). I have considered these legal consequences of affirming the non-revocation decision. I have also considered the practical consequences for the Applicant, his family and others of affirming the decision. I consider that the fact that the Applicant will, in all likelihood, be removed from Australia, never to return to Australia and that he could be detained for some time in immigration detention before removal, weigh in the Applicant’s favour and I give this consideration low weight.
Other Consideration (b): Extent of impediments if removed
Factors to be taken into account
Paragraph 9.2 of the Direction provides:
(1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen's age and health;
b) whether there are substantial language or cultural barriers; and
c) any social, medical and/or economic support available to them in that country
The Applicant is 46 years of age and does not have any significant health conditions other than that he previously had an addiction to illicit drugs including methamphetamine. The Tribunal accepts that having previously been addicted to drugs would present an impediment to establishing himself in New Zealand as there is a real chance that the Applicant could revert to drugtaking and crime with the consequential difficulties which that may entail including to his health and wellbeing and the chance of being imprisoned. The Applicant has also claimed that in these circumstances he could also become involved with criminal gangs in New Zealand.
The Applicant was born in Samoa but lived in New Zealand for a number of years before coming to Australia. There is no evidence that there would be any substantial language or cultural barriers on return to New Zealand.
There is no evidence that the Applicant would not be able to access any government medical or economic support available to other New Zealand citizens.
The Tribunal accepts that the Applicant will not have any significant family support tin New Zealand.
The Tribunal accepts that the Applicant may find it difficult to find employment in New Zealand especially if he returns to illicit drugs.
The Tribunal acknowledges that it would be difficult for the Applicant to re-establish himself in New Zealand and weighs this consideration moderately in his favour.
Other Consideration (c): Impact on Australian business interests
This consideration is not relevant.
Conclusion: Is there another reason to revoke the cancellation of the Applicant’s visa?
The Tribunal has found that the primary considerations of the protection of the Australian community and family violence weigh very heavily against revocation of visa cancellation. The Tribunal has found that much of the Applicant’s offending was very serious, that there could be great harm to members of the Australian community if they were repeated and that there is a real risk that the Applicant will re-offend. The Tribunal has also found that the consideration of the expectations of the Australian community weighs heavily against revocation of visa cancellation.
The Tribunal has found that the consideration of the strength, nature and duration of ties of the Applicant to Australia (and hardship to the Applicant) weighs in favour of revocation of the cancellation decision and attributed heavy weight to this consideration.
The Tribunal has found that the primary consideration of the best interests of minor children, weighs moderately in favour of revocation of the cancellation decision.
The Tribunal has found that while there are no protection issues which arise, the consequences of affirming the decision especially regarding the Applicant’s permanent removal from Australia and possible prolonged detention before that weigh in the Applicant’s favour as does the consideration of the extent of impediments if removed. The former is given low weight and the later moderate weight.
After considering all of the relevant considerations in this matter and the weight that I have attributed to them, informed by the principles in paragraph 5.2 of the Direction, I have decided that the primary considerations of the protection of the Australian community, family violence and the expectations of the Australian community outweigh all of the considerations which weigh in the Applicant’s favour.
The Tribunal has found that the Applicant does not pass the character test and that there is not another reason why the original decision should be revoked.
The Tribunal has decided to affirm the Minister’s delegate’s decision not to revoke the cancellation of the Applicant’s visa. The Tribunal considers that this is the correct decision in this case.
DECISION
The Tribunal affirms the reviewable decision.
Heard on: 26 and 27 June 2025 Applicant:
Self-represented
Advocate for the Respondent: Gianluca Rossi Solicitors for the Respondent: Mills Oakley Lawyers
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